December 16, 2004

The Glass is Half-full in a Post-Grokster World

After a semester of being considered out of touch with reality and unwilling to look at the practical realities of the modern era of copyrightI am now finally starting to understand the outrage of copyright “minimalists” – they just want to be able to share their recipes. It makes total sense; Fred Von Lohman is fighting for the right to be able to lend the world his personal diaries and to share with hundreds of college kid everywhere his music collections of indy-label garage bands. So where I am I going with this you ask – either one side really does want to share cookbooks over the internet or they are being just a little disingenuous in this copyright “war.”

I’m constantly reminded that these “minimalists” aren’t pro-pirate, but that they are pro-technology and even “pro-culture”. Lawrence Lessig is fighting this battle because as he has said, “never in our history have fewer people controlled more of the evolution of our culture.” I’m willing to concede that point, but does that mean that he supports the masses who use Kazaa-like servers so they can save 15 bucks ignoring the controlling “few people” who tell them they are breaking the law? Mr. Lessig lauds the EFF with praise, I just wish he would agree then with Mark Lemley – this isn’t about suppressing culture through the suppression of technology, rather this fight is one worth fighting in order simply to restore copyright protections to pre-p2p levels. In addition Mr. Lohman ardently believes that there is no reason to disturb Sony as it has worked thus far promoting the interests of consumers and content producers alike (this apples to oranges rationale just doesnt work). Looking through all the smoke and mirrors that both sides of this battle put up so they can be seen as the pro-consumer party, there’s a revealing way to look at all the parties involved. Anyone who has an opinion on these issues know that the future of illegal p2p now is up to the directives of the USSC and as far as I see it there are three different possible demographics of those who think a Grokster loss is just the worst thing that could ever happen….

First, we’ve got the people that see no excuse for restricting technology despite the fact that it is being used for illegal means (commercial distribution of copyrighted materials). Despite the fact that anyone with a brain knows that while Grokster is capable of substantial non infringing use, Grokster is/was being used almost exclusively for infringing uses, this first group believes that the innocent p2p technology should not be a victim (coincidentally these people who are upset about the loss of p2p are probably the same people who use p2p for infringing use – just a guess).

Second, we’ve got those people who believe that music should be free (I actually believe there’s a good argument that Larry Lessig belongs in this group – evidence you ask, his whole book Free Culture is premised on the fact that copyright-circumventing “borrowing” was done in the past and it has led to innumerable modern day marvels). These modern day hippies believe that they have some god-given right to be able to free ride. I won’t even try to rationalize this group – everyone learns in basic history class that communism fails miserably.

Third, we’ve got those people who think a Grokster loss is unfair because there is no telling how many cooking recipes will fail to gain the world-wide publicity that they fairly deserve (hint – this is the disingenuous group, because while most try to place themselves in here, common sense dictates they are really a category one or two).

So, where do you fit Mr. Lohman? Let me guess you’re a category three. You think p2p servers should thrive because you believe everyone should have their rightful access to noncommercial materials – and so by my account you are representing the hopes and desires of about 1000 people (that’s a liberal figure). Now, I don’t think there is anything wrong with the people who want to share their recipes and in fact its great if technology will thrive based upon the growing demand for servers to make easily accessible recipes. Therein lies a looming problem – nobody wants Grokster to live for this morally-justifiable reason.

An argument that I would guess Mr. Lohman would take issue with is this: let’s make cop-killer bullets legal. Everyone has the right to use them. I mean come on are you just the dumbest person alive, cop-killer bullets are capable of any number of substantial noninfringing uses and if we disallowed them, there’s no telling how much creativity/innovation we would drown. We are allowed to hunt and in addition, the target shooting industry is a legitimate multi-million dollar industry. Yes I realize that cop-killer bullets are hardly ever used for noninfringing uses, but they have the capability… I absolutely do not mean to suggest that the pro-p2p/“minimalist” crowd’s motives are this extreme, but I do mean to suggest that for 99.9% of the crowd, their rationales are just as disingenuous. (disclaimer - I know that analogy is poor, but you get my point)

So, now that I’ve offended anybody who has read this far let me propose the reasons why a Grokster loss isn’t the Orwellian nightmare that everyone is trying to convince us of.

Perhaps I’m blatantly misconstruing some matter of common sense – but is seems technology would continue to thrive in a post-Grokster world. However, only for the right reasons….

First, a Grokster loss is absolutely NOT a per se ban on p2p. Rather a Grokster loss is a per se ban on p2p servers that rely on and promote blatantly illegal activity, defend their conduct (or lack thereof) solely with the blind eye defense. If the court doles out rightful justice it will NOT ban Grokster, it will just force them to monitor the use of their product. If Grokster can’t or won’t monitor the use of their product, eliminating the copyrighted materials which they facilitate the sharing of – no sympathy here, byebye Grokster. On the other hand, if Grokster does monitor their site and/or copynorms change and everybody just uses p2p for recipes, indy bands, materials copyrighted under a creative commons-like scheme, and authorized copyrighted downloads, technology will thrive and p2p will thrive.

Second, p2p technology innovation will thrive with unprecedented fervor because the reality is that people like MP3s and realize that a world that combines burgeoning internet technology with something everyone likes – music, is having your cake and eating it too. As a major plus for everyone involved the recording industry is currently in the process of embracing this reality and there is no doubt in my mind that a Grokster loss p2p would elevate this technology even more than a Grokster win.People may not like having to pay for MP3s now but in time they will be converted - because some recording companies have already signed away their song lists to the likes of Shawn Fanning to use in Snocap, it is a matter of common sense that the remaining major labels will jump on the technology bandwagon. With more music being legally available online, innovators will compete to create the best p2p server available. Moreover, because the p2p servers will be getting paid there is even more incentive for them to create the best possible server. There’s no doubt that illegal p2p servers will exist – but with incentives to innovate so disproportional there’s not a reasonable likelihood that illegal servers will continue to thrive in the mainstream. Innovation is driven by competition, this foundation for copyright protection is incentivized much more with a Grokster loss NOT a Grokster win. Plain and simple, a Grokster loss would demand competition among technology buffs for the almighty dollar – this is an enormous incentive not currently a large part of the picture in terms of p2p innovation.

Third, a Grokster loss would force Larry Lessig to really examine whether a creative commons scheme is desirable, and if it is to continue promoting this potentially useful scheme. At this stage, Creative Commons is being embraced solely by hobbyists, hopefuls, and has-beens. To be honest common sense seems to dictate and I believed that in a world where an artist knows his materials will be stolen and he has no legal recourse, the opportunity cost seems to weigh towards embracing some type of limited creative commons copyright (at least you earn the praise of a bunch of college-aged “leeches”). What does Madonna have to lose in a pre-Grokster world, if she signs onto CC authorizing mp3 downloads of her works 325 million people would take her music instead of 320 million? So in a post-Grokster world we will see whether people really do want to their creations given out, no strings attached. But who knows, maybe we are just a bunch of hippies free-riding along.

Despite my obvious belief that copyright protection must be restored to previous pre-p2p levels I’m not totally unsympathetic to the other side. Mr. Lohman, I honestly do feel bad for anybody who loses something they so earnestly believe in, but just come out and say how you really feel – you are obviously a much more intelligent man than I, but let’s be honest with each other, either you think music should be free or you don’t. Forcing p2p servers to remove copyrighted materials is a way to promote this burgeoning technology – it is not the means to destroy it.

There are certainly many ways copyright law needs to be updated to meet the realities of modern technology – condemning frivolous claims, ensuring the fair use defense, and re-examining the justifications for copyright terms are all among the deficiencies of copyright that modern innovation has forced us to ponder. However, the fact that p2p and modern technologies highlight these aforementioned inefficiencies is absolutely not a reason to crack down on peer to peer – on the other hand that Grokster-like servers enable the circumvention of laws that promote creativity is a good reason.

A Grokster loss, such that it sets the precedent that turning a blind eye is an absolute joke of a defense is not the be all end all to p2p technology. In fact it is quite the opposite. In my view defending the position of Grokster speaks volumes for so called copyright “minimalists.” Instead of wasting their efforts to condemn the (for the most part) lawful endeavors of the content industry which accuses Grokster and its users of circumventing tried and tested means of benefiting the public as a whole, copyright “minimalists” should take the side that is truly pro-technology. If I have come away with anything this semester, studying both sides of the debate has taught me that anyway you slice it, being pro-technology does not mean having to be against the industries which create the content, which spurs the technology and arguments to the contrary are just a little disingenuous.

The future of copyright is anybody’s guess but we all know that the ruling next year in Grokster will have unprecedented implications on the future of copyright. I just hope the Court sees that copyright laws are in place because they promote the best interests of all involved. Overturning the Grokster decision is not only the best way to promote the arts and sciences, it is the best way to promote peer to peer technology.

Comments

I think you dismiss your "group one" people too quickly.

I would put myself in this group, despite never even having even downloaded a p2p client. The main reason being that I develop software for a living, and I've tried and failed to come with a definition of "p2p" that doesn't include things like FTP, the WWW, and the Internet itself. Guess what ? The Internet was created as a way to share files between peers. Does that make copyright infringement easier ? Of course it does, just like the casette recorder and photocopier before it.

I find it hard to believe that a country with such a strong protection for "the right to bear arms" (which, let's face it, is a technology designed to kill people, legally or illegally, and killing people is far more serious than infringing copyright, whatever the RIAA may tell you) fails to recognise that most technologies can be used for both good and evil, and that it's not p2p apps that infringe copyright, but people.

I agree "that copyright protection must be restored to previous pre-p2p levels" say about 1850 or even 1800 would be just about right. Currently the people with the 'power' (read content holders not creators for the most part) have hijacked the copyright laws to effectivly steal what were the people's copyrights. I don't (yet) download music. I however believe that most people have a inate sense of what is fair and the current system is unfair and so most people don't really see downloading as a gross wrong to be avoided. Why is it that the creative output on an engineer is allowed ~17 years of protection and the creative output of an actor is good for life plus 70 years?

The copyright system is out of balance. Because the slaves can now revolt and choose to do so is an indication that the system is broken. What was a fair and balanced trade in the past has become so lopsided that it effectively only is a benefit to one side.